Can States Determine Who Represents Them in Federal Courts?

Earlier this week, the Supreme Court heard a case about whether states legislatures can represent the interests of a state in federal court when a party challenges the constitutionality of a law. In Berger v. North Carolina Conference of the NAACP, the district court denied the Legislature’s attempt to intervene in the case. According to the District Court, the State’s Attorney General would adequately represent the interests of the state.

The case came from the Fourth Circuit Court of Appeals. ALEC filed an amicus brief because the appellate court’s decision represents a significant threat to state legislative authority. The decision ignored validly enacted state law identifying the legislature as a proper party to any lawsuit challenging the constitutionality of a state statute. 

In Berger, the plaintiffs challenged the state’s voter ID laws in federal court. At the time the challenge was first filed, the Attorney General was Roy Cooper, who is now the Governor, and a member of the Democratic Party. The Governor expressed concerns that the law violated the Constitution and, largely, did not defend it. 

The Legislature, fearing that the current Attorney General who is also a Democrat would provide a lackadaisical defense, passed a law identifying it as the proper agent in the state. The Attorney General, on the other hand, argued that his representation of the state was adequate, regardless of state law.

Today’s hearing highlighted a divide in the court. Some justices seem ready to put aside state law and allow a state attorney general to represent the state’s interests. Other justices questioned just where the state law might fit into the judicial analysis, recognizing that the federal rules acknowledge the “paramount interest in defending a state law,” while balancing a court’s “interest in administering a law.”

Fifteen or twenty years ago, the question of if an attorney general would adequately represent a state was a closed question. Regardless of the political leanings of the official, he would vigorously defend a statute from legal challenges. As highlighted in the brief ALEC filed, this all changed starting in 2007, when attorneys general started playing politics with their positions. Now, whether the attorney general will defend a law depends on whether that law fits into the political objectives of his party. 

Unfortunately, many federal courts have not caught up to the games that can be played. Federal Rules of Civil Procedure govern, for federal courts, when a party can participate in a suit and some courts apply the analysis independent of state laws or concepts of federalism. Other courts integrate state law into the analysis when determining who can represent the state in court. 

The case represents a risk for federalism. If the Supreme Court agrees with the plaintiffs, attorneys general will effectively be the only legal representatives of states federal courts recognize. This recognition will have two effects – ignoring state law and thus setting aside the dual sovereignty of states and allowing attorneys general to play politics with state laws by providing only a half-hearted defense to state laws with which he disagrees. 

In Depth: Federalism

Genuine accountability to hardworking taxpayers results when state and local legislators work with members of the community to determine a plan of action that is right for each individual state, city or town. Real solutions to America’s challenges can be found in the states – America’s fifty laboratories of democracy…

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